The Vermont Statutes Online

Title 18: Health

Chapter 231: Advance Directives for Health Care, Disposition of Remains, and Surrogate Decision Making

• Subchapter 001: ADVANCE DIRECTIVES AND DISPOSITION OF REMAINS

• § 9700. Purpose and policy

  The State of Vermont recognizes the fundamental right of an adult to determine the extent of health care the individual will receive, including treatment provided during periods of incapacity and at the end of life. This chapter enables adults to retain control over their own health care through the use of advance directives, including appointment of an agent and directions regarding health care and disposition of remains. During periods of incapacity, the decisions by the agent shall be based on the express instructions, wishes, or beliefs of the individual, to the extent those can be determined. This chapter also allows, in limited circumstances in which a patient without capacity has neither an agent nor a guardian, for a surrogate to provide or withhold consent on the patient’s behalf for a do-not-resuscitate order or clinician order for life-sustaining treatment. (Added 2005, No. 55, § 1; eff. Sept. 1, 2005; amended 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 9701. Definitions

  As used in this chapter:

  (1) “Advance directive” means a written record executed pursuant to section 9703 of this title, which may include appointment of an agent, identification of a preferred primary care clinician, instructions on health care desires or treatment goals, an anatomical gift, disposition of remains, and funeral goods and services. The term includes documents designated under prior law as a durable power of attorney for health care or a terminal care document.

  (2) “Agent” means an adult with capacity to whom authority to make health care decisions is delegated under an advance directive, including an alternate agent if the agent is not reasonably available.

  (3) “Anatomical gift” shall have the same meaning as provided in subdivision 5250b(3) of this title.

  (4) “Capacity” means an individual’s ability to make and communicate a decision regarding the issue that needs to be decided.

  (A) An individual shall be deemed to have capacity to appoint an agent if the individual has a basic understanding of what it means to have another individual make health care decisions for oneself and of who would be an appropriate individual to make those decisions, and can identify whom the individual wants to make health care decisions for the individual.

  (B) An individual shall be deemed to have capacity to make a health care decision if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.

  (5) “Clinician” means a medical doctor licensed to practice under 26 V.S.A. chapter 23, an osteopathic physician licensed pursuant to 26 V.S.A. chapter 33, an advanced practice registered nurse licensed pursuant to 26 V.S.A. chapter 28, subchapter 2, and a physician assistant licensed pursuant to 26 V.S.A. chapter 31 acting within the scope of the license under which the clinician is practicing.

  (6) “Clinician orders for life-sustaining treatment” or “COLST” means a clinician’s order or orders for treatment such as intubation, mechanical ventilation, transfer to hospital, antibiotics, artificially administered nutrition, or another medical intervention. A COLST order is designed for use in outpatient settings and health care facilities and may include a DNR order that meets the requirements of section 9708 of this title.

  (7) “Commissioner” means the Commissioner of Health.

  (8) “Do-not-resuscitate order” or “DNR order” means a written order of the patient’s clinician directing health care providers not to attempt resuscitation.

  (9) “DNR identification” means a necklace, bracelet, or anklet identifying the patient as an individual who has a DNR order.

  (10) “Emergency medical personnel” shall have the same meaning as provided in 24 V.S.A. § 2651.

  (11) “Guardian” means a person appointed by the Probate Division of the Superior Court who has the authority to make medical decisions pursuant to 14 V.S.A. § 3069(c).

  (12) “Health care” means any treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services provided pursuant to a clinician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility.

  (13) “Health care decision” means consent, refusal to consent, or withdrawal of consent to any health care and includes consent to receive out-of-network services.

  (14) “Health care facility” shall have the same meaning as provided in section 9432 of this title.

  (15) “Health care provider” shall have the same meaning as provided in section 9432 of this title and shall include emergency medical personnel.

  (16) “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, codified at 42 U.S.C. § 1320d and 45 C.F.R. §§ 160-164.

  (17) “Informed consent” means the consent given voluntarily by an individual with capacity, on his or her own behalf or on behalf of another in the role of an agent, guardian, or surrogate, after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.

  (18) “Interested individual” means:

  (A) the principal’s or patient’s spouse, adult child, parent, adult sibling, adult grandchild, or clergy person; or

  (B) any adult who has exhibited special care and concern for the principal or patient and who is personally familiar with the principal’s or patient’s values.

  (19) “Life sustaining treatment” means any medical intervention, including nutrition and hydration administered by medical means and antibiotics, which is intended to extend life and without which the principal or patient is likely to die.

  (20) “Nutrition and hydration administered by medical means” means the provision of food and water by means other than the natural ingestion of food or fluids by eating or drinking. Natural ingestion includes spoon feeding or similar means of assistance.

  (21) “Ombudsman” means:

  (A) the State Long-Term Care Ombudsman or a representative of the Ombudsman’s Office, as defined in 33 V.S.A. § 7501; or

  (B) a representative of the agency designated as the Office of the Mental Health Care Ombudsman pursuant to section 7259 of this title.

  (22) “Patient’s clinician” means the clinician who currently has responsibility for providing health care to the patient.

  (23) “Principal” means an adult who has executed an advance directive.

  (24) “Principal’s clinician” means a clinician who currently has responsibility for providing health care to the principal.

  (25) “Probate Division of the Superior Court designee” means a responsible, knowledgeable individual independent of a health care facility designated by the Probate Division of the Superior Court in the district where the principal resides or the county where the facility is located.

  (26) “Procurement organization” shall have the same meaning as in subdivision 5250b(22) of this title.

  (27) “Reasonably available” means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a principal’s health care needs, and willing and able to act in a timely manner considering the urgency of the principal’s health care needs.

  (28) “Registry” means a secure, web-based database created by the Commissioner to which individuals may submit an advance directive or information regarding the location of an advance directive that is accessible to principals and agents and, as needed, to individuals appointed to arrange for the disposition of remains, procurement organizations, health care providers, health care facilities, residential care facilities, funeral directors, crematory operators, cemetery officials, Probate Division of the Superior Court officials, and the employees thereof.

  (29) “Residential care facility” means a residential care home or an assisted living residence as those terms are defined in 33 V.S.A. § 7102.

  (30) “Resuscitate” or “resuscitation” includes chest compressions and mask ventilation; intubation and ventilation; defibrillation or cardioversion; and emergency cardiac medications provided according to the guidelines of the American Heart Association’s Cardiac Life Support program.

  (31) “DNR/COLST” means a do-not-resuscitate order (DNR) or a clinician order for life-sustaining treatment (COLST), or both.

  (32) “Surrogate” means an interested individual who provides or withholds, pursuant to subchapter 2 of this chapter, informed consent for a do-not-resuscitate order or a clinician order for life-sustaining treatment.

  (33) “Suspend” means to terminate the applicability of all or part of an advance directive for a specific period of time or while a specific condition exists.

  (34) “Mental health patient representative” means the mental health patient representative established by section 7253 of this title.

  (35) “Digital signature” means an electronic identifier that is intended by the individual using it to have the same force and effect as a manual signature and that meets all of the following requirements:

  (A) uses an algorithm approved by either the National Institute of Standards and Technology or by the Department of Health;

  (B) is unique to the individual using it;

  (C) is capable of verification;

  (D) is under the sole control of the individual using it;

  (E) is linked to data in a manner that invalidates the digital signature if the data is changed;

  (F) persists with the document and not by association in separate files; and

  (G) is bound to a digital certificate.

  (36) “Remote witness” means a witness who is not physically present when a principal signs an advance directive. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 332; 2009, No. 25, § 13; 2009, No. 119 (Adj. Sess.), § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 60, § 9, eff. June 1, 2011; 2013, No. 34, § 30a; 2013, No. 127 (Adj. Sess.), § 4, eff. May 10, 2014; 2013, No. 192 (Adj. Sess.), § 17; 2015, No. 23, § 47; 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018; 2017, No. 113 (Adj. Sess.), § 112; 2017, No. 121 (Adj. Sess.), § 1, eff. May 3, 2018; 2021, No. 137 (Adj. Sess.), § 7, eff. July 1, 2022; 2023, No. 88 (Adj. Sess.), § 1, eff. April 1, 2024.)

• § 9702. Advance directive

  (a) An adult may do any or all of the following in an advance directive:

  (1) except as provided in subsection (c) of this section, appoint one or more agents and alternate agents to whom authority to make health care decisions is delegated and specify the scope of such authority;

  (2) affirm that the agent and alternate agents have been notified of and have accepted the appointment and will be given copies of the advance directive;

  (3) specify a circumstance or condition, which may be unrelated to the principal’s capacity, which, when met, makes the authority of an agent effective or ineffective, and may specify the manner in which the condition shall be determined to have been met;

  (4) provide that the advance directive will become effective upon execution;

  (5) direct the type of health care desired or not desired by the principal, which may include instructions regarding transfer from home, hospitalization, and specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability;

  (6) execute a provision under subsection 9707(h) of this title which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity;

  (7) direct which life sustaining treatments, as defined in subdivision 9701(19) of this title, whether emergency, short-term, or long-term, and including nutrition and hydration administered by medical means, are desired or not desired by the principal;

  (8) direct which life sustaining treatment the principal would desire or not desire if the principal is pregnant at the time an advance directive becomes effective;

  (9) identify those persons whom the principal does not want to serve as his or her decision-maker, or those adults or minors with whom the agent shall or shall not consult or to whom the agent is or is not authorized to provide information regarding the principal’s health care;

  (10) identify those individuals or entities, whether or not otherwise qualified to bring an action under section 9718 of this title, who shall or shall not have authority to bring an action under that section;

  (11) authorize release to named individuals in addition to the agent of health information pursuant to HIPAA;

  (12) provide any other direction that the principal desires to give regarding the principal’s future health care or personal circumstances;

  (13) identify a preferred clinician and affirm that the clinician has been notified;

  (14) nominate one or more individuals to serve as the principal’s guardian if a guardian should at some later time need to be appointed, or identify those individuals the principal does not want to serve as guardian;

  (15) make, limit, or refuse to make an anatomical gift pursuant to chapter 110 of this title;

  (16) direct the manner of disposition of the principal’s remains and the funeral goods and services to be provided;

  (17) identify a pre-need contract entered into with a funeral director, crematory, or cemetery; and

  (18) except as provided in subsection (d) of this section, appoint an individual to make or refuse to make an anatomical gift, and to arrange for the disposition of the principal’s remains, including funeral goods and services.

  (b) The absence of an advance directive or of any specific instruction in an advance directive shall have no effect on determining the principal’s intent or wishes regarding health care or any other matter.

  (c) The principal’s health care provider may not be the principal’s agent. Unless related to the principal by blood, marriage, civil union, or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a health care facility, or a correctional facility in which the principal resides at the time of execution of an advance directive.

  (d) Unless related to the principal by blood, marriage, civil union, or adoption, an individual may not exercise the authority pursuant to an advance directive for disposition of remains, anatomical gifts, or funeral goods and services while serving the interests of the principal in one of the following capacities:

  (1) a funeral director or employee of the funeral director;

  (2) a crematory operator or employee of the crematory operator;

  (3) a cemetery official or employee of the cemetery; or

  (4) an employee or representative of a procurement organization. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 333; 2009, No. 119 (Adj. Sess.), § 5.)

• § 9703. Form and execution

  (a) An adult with capacity may execute an advance directive at any time.

  (b)(1) The advance directive shall be dated, executed by the principal or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so, and signed by two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed.

  (2) On and after April 1, 2024, the principal shall have either signed in the physical presence of the witness or the following conditions shall have been met if the witness is a remote witness:

  (A) the principal and the remote witness were known to each other;

  (B) based on communication between the principal and the remote witness through a live, interactive, audio-video connection or by telephone, the remote witness attested that the principal seemed to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed; and

  (C) the principal included on the advance directive the name and contact information for the remote witness and the nature of the principal’s relationship to the remote witness.

  (3) A health care provider may serve as a witness to the principal’s execution of the advance directive under this subsection.

  (4) If the principal is being admitted to or is a resident of a nursing home or residential care facility or is being admitted to or is a patient in a hospital at the time of execution, the individual who explained the nature and effect of the advance directive to the principal pursuant to subsection (d) or (e) of this section may also serve as one of the witnesses to the principal’s execution of the advance directive under this subsection.

  (c) Neither the agent appointed by the principal nor the principal’s spouse, parent, adult sibling, adult child, or adult grandchild may witness the advance directive.

  (d)(1) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a resident of a nursing home as defined in 33 V.S.A. § 7102 or a residential care facility, unless one of the following individuals explains the nature and effect of an advance directive to the principal and signs a statement affirming that the individual has provided the explanation:

  (A) an ombudsman;

  (B) a recognized member of the clergy;

  (C) an attorney licensed to practice in this State;

  (D) a Probate Division of the Superior Court designee;

  (E) an individual designated by a hospital pursuant to subsection 9709(d) of this title;

  (F) a mental health patient representative;

  (G) an individual who is volunteering at the nursing home or residential care facility without compensation and has received appropriate training regarding the explanation of advance directives; or

  (H) a clinician, provided the clinician is not employed by the nursing home or residential care facility at the time of the explanation.

  (2) It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.

  (3) The individual who explains the nature and effect of an advance directive to the principal under this subsection may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection or by telephone.

  (e)(1) An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless one of the following individuals explains the nature and effect of an advance directive to the principal and signs a statement affirming that the individual has provided the explanation:

  (A) an ombudsman;

  (B) a recognized member of the clergy;

  (C) an attorney licensed to practice in this State;

  (D) a Probate Division of the Superior Court designee;

  (E) an individual designated by the hospital pursuant to subsection 9709(d) of this title; or

  (F) a mental health patient representative.

  (2) The individual who explains the nature and effect of an advance directive to the principal under this subsection may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection or by telephone.

  (f) A durable power of attorney for health care, terminal care document, or advance directive executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

  (g) A principal, a witness, or an individual who explains an advance directive under subsection (d) or (e) of this section may sign the advance directive or the explanation affirmation statement using a digital signature, provided that, for a remote witness, the conditions set forth in subdivision (b)(2) of this section shall be met. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2009, No. 154 (Adj. Sess.), § 238a, effective February 1, 2011; 2013, No. 192 (Adj. Sess.), § 18; 2015, No. 23, § 48; 2017, No. 121 (Adj. Sess.), § 2, eff. May 3, 2018; 2023, No. 88 (Adj. Sess.), § 2, eff. April 1, 2024.)

• § 9704. Amendment, suspension, and revocation

  (a)(1) A principal with capacity may amend, suspend, or revoke an advance directive or any specific instruction in an advance directive by executing a new advance directive or instruction pursuant to section 9703 of this title.

  (2) A provision in a subsequently executed advance directive amends an earlier provision in an advance directive to the extent of any conflict between them.

  (b)(1) Except as provided in subdivision (3) of this subsection, a principal with or without capacity may suspend or revoke all or part of an advance directive, including the designation of an agent:

  (A) by signing a statement suspending or revoking all or part of an advance directive;

  (B) by personally informing the principal’s clinician, who shall make a written record of the suspension or revocation in the principal’s medical record; or

  (C) by burning, tearing, or obliterating the advance directive, either by the principal personally or by another person at the principal’s express direction and in the presence of the principal.

  (2) Except as provided in subdivision (3) of this subsection, a principal with or without capacity may suspend or revoke any provision other than the designation of an agent, orally, in writing, or by any other act evidencing a specific intent to suspend or revoke.

  (3) A provision in an advance directive executed pursuant to subsection 9707(h) of this title may be suspended or revoked only if the principal has capacity.

  (4) To the extent possible, the principal shall communicate any suspension or revocation to the agent or other interested individual.

  (c)(1) A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating an incapacitated principal shall make reasonable efforts to:

  (A) confirm the amendment, suspension, or revocation;

  (B) record the amendment, suspension, or revocation in the principal’s medical record;

  (C) flag the amendment, suspension, or revocation in the principal’s medical record on the front of the medical folder or on the front of any advance directive filed in the medical record;

  (D) notify the principal, agent, and guardian of the amendment, suspension, or revocation; and

  (E) inform the registry of the amendment, suspension, or revocation.

  (2) A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating a principal with capacity shall comply with the following requirements:

  (A) satisfy the requirements of subdivisions (1)(A), (B), and (C) of this subsection (c); and

  (B) on request, assist the principal in notifying agents, guardians, interested individuals, and the registry.

  (3) A health care provider, health care facility, or residential care facility not currently providing health or residential care to a principal who becomes aware of an amendment, suspension, or revocation shall ensure that the amendment, suspension, or revocation is recorded and flagged in the principal’s medical record and is submitted to the registry.

  (4) An agent or guardian who becomes aware of an amendment, suspension, or revocation shall make reasonable efforts to:

  (A) confirm the amendment, suspension, or revocation;

  (B) ensure that the amendment, suspension, or revocation is recorded in the principal’s medical record; and

  (C) provide notice of the amendment, suspension, or revocation to:

  (i) the principal’s clinician, health care provider, health care facility, or residential care facility;

  (ii) any person designated in the advance directive to receive such notice;

  (iii) any entity or individual known to hold a copy of the principal’s advance directive; and

  (iv) the registry, if the principal’s advance directive has been submitted to the registry.

  (d)(1) The filing of an action or motion for annulment, divorce, dissolution of a civil union, legal separation, or an order for relief from abuse under 15 V.S.A. chapter 21 or 33 V.S.A. chapter 69, subchapter 2 by, on behalf of, or against the principal suspends a previous designation of the spouse or other party opposing the principal in the action as agent unless otherwise specified in the advance directive, decree, or order of the court.

  (2) A designation of agent suspended under subdivision (1) of this subsection shall no longer be in effect, and the agent shall be reinstated, upon the withdrawal of the action or motion for annulment, divorce, dissolution of civil union, legal separation, or order for relief from abuse, or upon the expiration of a temporary order for relief from abuse.

  (3) A designation of agent suspended under subdivision (1) of this subsection shall become permanent when the annulment, divorce, dissolution of civil union, or legal separation becomes final, or when the motion for relief from abuse is granted.

  (e) Unless otherwise provided for in an advance directive, each provision of an advance directive is severable from the other provisions in an advance directive if it can be given effect independently. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 334.)

• § 9705. Duty to deliver

  An individual possessing a duly executed advance directive to whom it becomes known that the terms of the advance directive may be applicable shall deliver the advance directive to the principal’s clinician, other health care provider, health care facility, or residential care facility, unless the individual knows that another copy has previously been delivered and is available. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005.)

• § 9706. When advance directive becomes effective

  (a) An advance directive regarding health care shall become effective:

  (1) when a principal’s clinician:

  (A) determines, after speaking with an interested individual if one is reasonably available, that the principal lacks capacity, and makes specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity;

  (B) has made reasonable efforts to notify the principal of the determination; and

  (C) has made reasonable efforts to notify the principal’s agent or guardian of the determination; or

  (2) when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title has been met; or

  (3) upon execution, if specified pursuant to subdivision 9702(a)(4) of this title.

  (b) When a principal has a clinician, the clinician shall certify in the principal’s medical record the facts that have caused an advance directive to become effective.

  (c) Upon a determination of need by the principal’s clinician, or upon the request of the principal, agent, guardian, ombudsman, a mental health patient representative, health care provider, or any interested individual, the principal’s clinician, another clinician, or a clinician’s designee shall reexamine the principal to determine whether the principal has capacity. The clinician shall document the results of the reexamination in the principal’s medical record and shall make reasonable efforts to notify the principal and the agent or guardian, as well as the individual who initiated the new determination of capacity, of the results of the reexamination, if providing such notice is consistent with the requirements of HIPAA.

  (d) The authority of an agent to make health care decisions for a principal shall cease in accordance with subsection 9711(c) of this title.

  (e) An advance directive regarding disposition of the principal’s remains shall become effective upon the death of the principal. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2013, No. 192 (Adj. Sess.), § 19; 2017, No. 121 (Adj. Sess.), § 2a, eff. May 3, 2018.)

• § 9707. Authority and obligations of health care providers, health care facilities, and residential care facilities regarding health care instructions

  (a) A health care provider, health care facility, and residential care facility shall not provide health care to a patient without capacity, except on an emergency basis, without first attempting to determine whether the patient has an advance directive in effect.

  (b) A health care provider, health care facility, and residential care facility having knowledge that a principal’s advance directive is in effect shall follow the instructions of the person, whether agent or guardian, who has the authority to make health care decisions for the principal, or the instructions contained in the advance directive, unless:

  (1) the instruction is clearly inconsistent with the advance directive or this chapter, and:

  (A) the agent has failed to substantiate that the decision is proper under subsection 9711(d) of this title; or

  (B) the guardian has not obtained an order from the Probate Division of the Superior Court authorizing the instruction;

  (2) the instruction would cause the provider to violate any criminal law or the standards of professional conduct required by a professional licensing Board or Agency, in which case the provider shall make reasonable efforts to notify the principal, if possible, and any agent and guardian that the provider cannot follow the instruction; or

  (3) because of a moral, ethical, or other conflict with an instruction in the advance directive or given by the agent or guardian, a principal’s provider, or an employee thereof is unwilling to follow that instruction, in which case the provider shall promptly:

  (A) inform the principal, if possible, and any appointed agent and guardian of the conflict;

  (B) assist the principal, agent, or guardian in the transfer of care to another provider or employee who is willing to honor the instruction;

  (C) provide ongoing health care until a new provider or employee has been found to provide the services; and

  (D) document in the principal’s medical record the conflict, the steps taken to resolve the conflict, and the resolution of the conflict.

  (c) A health care provider, health care facility, or residential care facility which refuses pursuant to subdivision (b)(1) or (2) of this section to follow the instructions of the agent or the guardian or the instructions contained in the advance directive shall:

  (1) inform the principal, if possible, and any agent, guardian, or other person making health care decisions for the person of the reasons for the refusal;

  (2) document in the principal’s medical record the refusal, the reasons for the refusal, who was notified of the refusal, and any other steps taken to resolve the refusal.

  (d) An employee with a conflict under subdivision (b)(3) of this section shall be required only to inform the employee’s employer. The employer shall be responsible for otherwise complying with the requirements of that subdivision.

  (e) Unless otherwise required by the advance directive, in those circumstances where there is more than one adult identified as the agent, the principal’s clinician, health care provider, or residential care provider may rely on the decision of one of the identified agents as long as the clinician or provider documents in the principal’s medical record that the agent confirms that:

  (1) all agents agree on the pending health care decision;

  (2) all agents agree that this agent can make any pending health care decisions; or

  (3) the other agent or agents are not reasonably available.

  (f) The health care provider shall make reasonable efforts to inform the principal of any proposed health care or of any proposal to withhold or withdraw health care.

  (g)(1) Health care shall not be given to or withheld from a principal over the principal’s objection unless:

  (A)(i) the principal’s advance directive contains a provision, executed in compliance with subsection (h) of this section, which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity; and

  (ii) the agent authorizes providing or withholding the health care; or

  (B) the principal lacks capacity, will suffer serious and irreversible bodily injury or death if the health care cannot be provided within 24 hours, and:

  (i) the principal does not have an agent or an applicable provision in an advance directive, or the agent is not reasonably available; or

  (ii) the agent or advance directive authorizes providing or withholding the health care.

  (2) The health care provider shall notify the agent or guardian if a principal requests or declines health care which the agent appears to have the authority to authorize or withhold under the principal’s advance directive.

  (h)(1) An advance directive executed in accordance with section 9703 of this title may contain a provision permitting the agent, in the event that the principal lacks capacity, to authorize or withhold health care over the principal’s objection. In order to be valid, the provision shall comply with the following requirements:

  (A) An agent shall be named in the provision.

  (B) The agent shall accept in writing the responsibility of authorizing or withholding health care over the principal’s objection in the event the principal lacks capacity.

  (C) A clinician for the principal shall sign the provision and affirm that the principal appeared to understand the benefits, risks, and alternatives to the health care being authorized or rejected by the principal in the provision.

  (D)(i) An ombudsman, a mental health patient representative, attorney licensed to practice law in this State, or the Probate Division of the Superior Court designee shall sign a statement affirming that the individual has explained the nature and effect of the provision to the principal, and that the principal appeared to understand the explanation and be free from duress or undue influence.

  (ii) If the principal is a patient in a hospital when the provision is executed, the ombudsman, mental health patient representative, attorney, or Probate Division of the Superior Court designee shall be independent of the hospital and not an interested individual.

  (E) The provision shall specify the treatments to which it applies and shall include an explicit statement that the principal desires or does not desire the proposed treatments even over the principal’s objection at the time treatment is being offered or withheld. The provision may include a statement expressly granting to the health care agent the authority to consent to the principal’s voluntary hospitalization.

  (F) The provision shall include an acknowledgment that the principal is knowingly and voluntarily waiving the right to refuse or receive treatment at a time of incapacity, and that the principal understands that a clinician will determine capacity.

  (2) A provision executed in compliance with subdivision (1) of this subsection shall be effective when the principal’s clinician and a second clinician have determined pursuant to subdivision 9706(a)(1) of this title that the principal lacks capacity.

  (3) If an advance directive contains a provision executed in compliance with this section:

  (A) The agent may, in the event the principal lacks capacity, make health care decisions over the principal’s objection, provided that the decisions are made in compliance with subsection 9711(d) of this title.

  (B) A clinician shall follow instructions of the agent authorizing or withholding health care over the principal’s objection.

  (4)(A) The first time a principal executes a provision under this subsection (h):

  (i) the principal’s clinician shall be physically present in the same location as the principal to assess the principal’s understanding of the benefits, risks, and alternatives to the health care being authorized or rejected in the provision in accordance with subdivision (1)(C) of this subsection (h); and

  (ii) the individual explaining the nature and effect of the provision in accordance with subdivision (1)(D) of this subsection (h) shall be physically present in the same location as the principal at the time of the explanation.

  (B) If a principal later amends a provision executed under this subsection (h) by executing a new advance directive pursuant to section 9703 of this title that includes a provision permitting the agent to authorize or withhold health care over the principal’s objection pursuant to this subsection (h), or the principal executes a new advance directive that maintains a provision previously executed under this subsection (h):

  (i) the clinician may be physically present in the same location as the principal to assess the principal’s understanding of the benefits, risks, and alternatives to the health care being authorized or rejected in the provision in accordance with subdivision (1)(C) of this subsection (h) or may assess the principal’s understanding based on the clinician’s interactions with the principal through a live, interactive, audio-video connection; and

  (ii) the individual explaining the nature and effect of the provision in accordance with subdivision (1)(D) of this subsection (h) may be physically present in the same location as the principal at the time of the explanation or may deliver the explanation to the principal through a live, interactive, audio-video connection.

  (C) The clinician and the individual providing the explanation do not need to be physically present at the same time as one another or otherwise coordinate the timing or performance of their respective duties under subdivisions (1)(C) and (D) of this subsection (h).

  (5) The agent who is permitted to authorize or withhold health care over the principal’s objection pursuant to this subsection does not need to be physically present for any portion of the principal’s execution of that provision or of the advance directive.

  (6) The principal, the agent, the clinician, and the individual who explained the provision under subdivision (1)(D) of this subsection (h), or any one or more of them, may sign the provision, acceptance, or explanation affirmation statement, as applicable, using a digital signature. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2009, No. 154 (Adj. Sess.), § 238a, effective Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 20; 2017, No. 121 (Adj. Sess.), § 2b, eff. May 3, 2018; 2023, No. 88 (Adj. Sess.), § 3, eff. April 1, 2024.)

• § 9708. Authority and obligations of health care providers, health care facilities, and residential care facilities regarding DNR orders and COLST

  (a) As used in this section, “clinician” shall have the same meaning as in section 9701 of this title and shall also include a duly licensed medical doctor, osteopathic physician, advanced practice registered nurse or nurse practitioner, or physician assistant who treated the patient outside Vermont and held a valid license to practice in the state in which the patient was located at the time the DNR/COLST was issued.

  (b) A DNR order and a COLST shall be issued on the Department of Health’s “Vermont DNR/COLST form” as designated by rule by the Department of Health.

  (c) Notwithstanding subsection (b) of this section, health care facilities and residential care facilities may document DNR/COLST orders in the patient’s medical record in a facility-specific manner when the patient is in their care.

  (d) A DNR order must:

  (1) be signed by the patient’s clinician;

  (2) certify that the clinician has consulted, or made an effort to consult, with the patient, and the patient’s agent or guardian, if there is an appointed agent or guardian;

  (3) include either:

  (A) the name of the patient; agent; guardian, in accordance with 14 V.S.A. § 3075(g); or surrogate giving informed consent for the DNR and the individual’s relationship to the patient; or

  (B) certification that the patient’s clinician and one other named clinician have determined that resuscitation would not prevent the imminent death of the patient, should the patient experience cardiopulmonary arrest; and

  (4) if the patient is in a health care facility or a residential care facility, certify that the requirements of the facility’s DNR protocol required by section 9709 of this title have been met.

  (e) A COLST must:

  (1) be signed by the patient’s clinician; and

  (2) include the name of the patient; agent; guardian, in accordance with 14 V.S.A. § 3075(g); or surrogate giving informed consent for the COLST and the individual’s relationship to the patient.

  (f) [Repealed.]

  (g) A patient’s clinician issuing a DNR/COLST order shall:

  (1) place a copy of the completed DNR/COLST order in the patient’s medical record; and

  (2) provide instructions to the patient as to the appropriate means of displaying the DNR/COLST order.

  (h) A clinician who issues a DNR order shall authorize issuance of a DNR identification to the patient. Uniform minimum requirements for DNR identification shall be determined by the Department of Health by rule not later than January 1, 2016.

  (i) Every health care provider, health care facility, and residential care facility shall honor a DNR/COLST order or a DNR identification unless the provider or facility:

  (1) believes in good faith, after consultation with the agent or guardian where possible and appropriate, that:

  (A) the patient wishes to have the DNR/COLST order revoked; or

  (B) the patient with the DNR identification is not the individual for whom the DNR order was issued; and

  (2) documents the basis for the good faith belief in the patient’s medical record.

  (j) A DNR/COLST order executed prior to July 1, 2011 shall be a valid order if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

  (k) A health care provider shall honor in good faith an out-of-state DNR order, orders for life sustaining treatment, or out-of-state DNR identification if there is no reason to believe that what has been presented is invalid.

  (l) A DNR order precludes efforts to resuscitate only in the event of cardiopulmonary arrest and does not affect other therapeutic interventions that may be appropriate for the patient. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2011, No. 60, § 10, eff. June 1, 2011; 2011, No. 76 (Adj. Sess.), § 1, eff. March 7, 2012; 2013, No. 50, § E.312.3; 2013, No. 127 (Adj. Sess.), §§ 2, 5, eff. May 10, 2014; 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018; 2017, No. 121 (Adj. Sess.), § 3, eff. May 3, 2018; 2023, No. 6, § 244, eff. July 1, 2023.)

• § 9709. Obligations of health care providers, health care facilities, residential care facilities, and health insurers regarding protocols and nondiscrimination

  (a) As used in this section, “DNR/COLST” shall mean do-not-resuscitate orders (DNR) and clinician orders for life sustaining treatment (COLST) as defined in section 9701 of this title.

  (b) Every health care provider, health care facility, and residential care facility shall develop protocols:

  (1) to ensure that a principal’s advance directive, including any amendment, suspension, or revocation thereof, and DNR/COLST order, if any, are promptly available when services are to be provided, including that the existence of the advance directive, amendment, suspension, revocation, or DNR/COLST order is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the provider or facility;

  (2) for maintaining advance directives received from individuals who anticipate future care but are not yet patients of that provider or facility;

  (3) to ensure that the provider or facility checks the registry at the time any individual without capacity is admitted or provided services to determine whether the individual has an advance directive;

  (4)(A) to ensure that, unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

  (i) request, review, receive, and copy any oral or written information regarding the principal’s physical or mental health, including medical and hospital records;

  (ii) participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

  (iii) consent to the disclosure of health care information; and

  (iv) file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility;

  (B) the exercise of rights under this subdivision shall not be construed to waive any privilege provided by law;

  (5) to ensure that the provider or facility complies with its obligations under the Patient Self-Determination Act, 42 U.S.C. § 1395cc(a), and the regulations issued thereunder.

  (c) Every health care facility and residential care facility shall develop written protocols to ensure that:

  (1) A patient is asked if the patient has an advance directive:

  (A) prior to an anticipated admission, when possible;

  (B) if not possible prior to admission, as soon thereafter as possible; and

  (C) periodically while at the facility.

  (2)(A) A patient’s advance directive is reviewed to determine whether the facility would decline to follow any of the advance directive’s instructions pursuant to subsection 9707(b) of this title, in which case the facility shall comply with the requirements of subsection 9707(c) or subdivision 9707(b)(3) of this title.

  (B) The review of a patient’s advance directive required by this subdivision shall occur:

  (i) prior to an anticipated admission, when possible;

  (ii) if not possible prior to an anticipated admission, as soon thereafter as possible; and

  (iii) when a patient executes an advance directive or an amendment to an advance directive.

  (3) A patient with an advance directive is encouraged and helped to submit the advance directive or a notice of the advance directive to the registry.

  (4) DNR/COLST orders are issued, revoked, and handled pursuant to the same process and standards that are used for each patient receiving health care.

  (5) Upon transfer or discharge to another facility, a copy of any advance directive, DNR order, or COLST order shall be transmitted with the principal or patient. If the transfer is to a health care facility or residential care facility, any advance directive, DNR order, or COLST order shall be promptly transmitted to the subsequent facility, unless the sending facility has confirmed that the receiving facility has a copy of the advance directive, DNR order, or COLST order.

  (6) For a patient for whom DNR/COLST orders are documented in a facility-specific manner, any DNR/COLST orders to be continued upon discharge, during transport, or in another setting shall be documented on the Vermont DNR/COLST form issued pursuant to subsection 9708(b) of this title or on the form as prescribed by the patient’s state of residence.

  (d)(1) Each nursing home and residential care facility that chooses to use volunteers to explain to residents the nature and effect of an advance directive as required by subsection 9703(d) of this title shall ensure that the volunteers have received appropriate training regarding the explanation of advance directives.

  (2) Every hospital shall designate an adequate number of individuals to explain the nature and effect of an advance directive to patients as required by subsection 9703(e) of this title.

  (e) No health care provider, health care facility, residential care facility, health insurer as defined in section 9402 of this title, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall charge an individual a different rate or require any individual to execute an advance directive or to obtain a DNR/COLST order or DNR identification as a condition of admission to a facility or as a condition of being insured for or receiving health care or residential care. No health care shall be refused except as provided in this subchapter because an individual is known to have executed an advance directive. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2011, No. 60, § 12, eff. June 1, 2011; 2017, No. 121 (Adj. Sess.), § 4, eff. May 3, 2018; 2023, No. 6, § 245, eff. July 1, 2023.)

• § 9710. Consent for hospice care

  (a) A family member of a patient or a person with a known close relationship to the patient may elect hospice care on behalf of the patient if the patient does not have an agent or guardian or the patient’s agent or guardian, or both, if applicable, are unavailable. Decisions made by the family member or person with a known close relationship shall protect the patient’s own wishes in the same manner as decisions made by an agent as described in subsection 9711(d) of this title.

  (b) As used in this section, “hospice care” means a program of care and support provided by a Medicare-certified hospice provider to help an individual with a terminal condition to live comfortably by providing palliative care, including effective pain and symptom management. Hospice care may include services provided by an interdisciplinary team that are intended to address the physical, emotional, psychosocial, and spiritual needs of the individual and his or her family. (Added 2013, No. 127 (Adj. Sess.), § 1, eff. May 10, 2014.)

• § 9711. Authority and obligations of agent

  (a) When the requirements of subsection 9706(a) of this title are met, and subject to the provisions of this chapter, other applicable law, and any express instructions regarding the agent’s authority set forth in an advance directive or a court order, an agent shall have the authority to make any health care decisions on the principal’s behalf that the principal could make if the principal had capacity.

  (b) A principal with capacity retains concurrent authority with the principal’s agent to make health care decisions. In the event the principal and the agent disagree on a decision regarding the principal’s health care, the decision of the principal shall be controlling.

  (c) The authority of an agent ceases to be effective:

  (1) if the advance directive became effective pursuant to subdivision 9706(a)(1) of this title, upon a clinician’s determination that the principal has recovered capacity; or

  (2) when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title no longer is met.

  (d)(1) After consultation with the principal, to the extent possible, and with the principal’s clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent shall consult, the agent shall make health care decisions by attempting to determine what the principal would have wanted under the circumstances. In making the determination, the agent shall consider the following:

  (A) the principal’s specific instructions contained in an advance directive to the extent those directions are applicable;

  (B) the principal’s wishes expressed to the agent, guardian, or health care provider, since or prior to the execution of an advance directive, if any, to the extent those expressions are applicable; or

  (C) the agent’s knowledge of the principal’s values or religious or moral beliefs.

  (2) If the agent cannot determine what the principal would have wanted under the circumstances, the agent shall make the determination through an assessment of the principal’s best interests. When making a decision for the principal on this basis, the agent shall not authorize the provision or withholding of health care on the basis of the principal’s economic status or preexisting, long-term mental or physical disability.

  (3) When making a determination under this subsection, the agent shall not consider the agent’s own interests, wishes, values, or beliefs.

  (4) If an agent is unable or unwilling to make a health care decision for the principal in compliance with the requirements of this subsection, the agent shall:

  (A) recuse himself or herself with respect to the decision or resign from being the principal’s agent; and

  (B) notify the principal, alternate agent, health care provider, and residential care provider of the recusal or resignation.

  (e) Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

  (1) request, review, receive, and copy any oral or written information regarding the principal’s physical or mental health, including medical and hospital records;

  (2) participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

  (3) consent to the disclosure of health care information; and

  (4) file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility.

  (f) Nothing in this chapter shall be construed to give an agent authority to consent to voluntary sterilization.

  (g) Unless the Probate Division of the Superior Court expressly orders otherwise in a guardianship proceeding pursuant to 14 V.S.A. § 3069(b), the authority of an agent appointed and the instructions contained in an advance directive executed prior to the appointment of the guardian shall remain in effect, and the ward may not execute an advance directive. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

• § 9712. Obligations of funeral directors, crematory operators, cemetery officials, procurement organizations, and individuals appointed to arrange for the disposition of the principal’s remains

  (a) An individual appointed to arrange for the disposition of the principal’s remains shall make those decisions based upon the principal’s specific instructions contained in an advance directive or pre-need contract entered into with a funeral director, crematory operator, or cemetery official, or, if there are no such instructions, in accordance with the principal’s wishes expressed orally or the knowledge of the agent or guardian of the principal’s values or religious or moral beliefs.

  (b) Any funeral director, crematory operator, or cemetery official having knowledge of a principal’s advance directive shall follow the advance directive and any instructions of the individual appointed in an advance directive to arrange for the disposition of the principal’s remains, except:

  (1) if any instruction would cause the director, operator, or official to violate the standards of professional conduct required by a professional licensing board or agency or any criminal law, the director, operator, or official shall notify the individual appointed that the director, operator, or official cannot follow the instruction; or

  (2) if the principal’s estate is without sufficient funds to dispose of the remains or provide funeral goods and services in accordance with the advance directive, the disposition shall occur in a manner approximating the principal’s wishes to the extent it is financially possible.

  (c) Any procurement organization having knowledge of a principal’s advance directive shall follow the advance directive and any instructions of the individual appointed in the advance directive to arrange for the recovery of the principal’s anatomical gifts unless the procurement organization determines such gifts are unsuitable for the purposes for which they are made or if recovery of such gifts would cause the procurement organization to violate standards of professional conduct or any applicable regulation or law.

  (d) Every funeral director, crematory operator, cemetery official, and procurement organization shall develop systems:

  (1) to ensure that a principal’s advance directive is promptly available when services are to be provided, including that the existence of an advance directive is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the director, operator, official, or organization; and

  (2) within 120 days after the Commissioner’s announcing the availability of the registry, to ensure that the director, operator, official, or organization checks the registry at the time services are to be provided to determine whether the decedent has an advance directive.

  (e) In the event the principal’s instructions in an advance directive regarding disposition of remains or for funeral goods and services are in apparent conflict with a contract entered into by the principal for the disposition of remains, funeral goods, or services, the most recent document created by the principal shall be followed to the extent of the conflict. Nothing in this subsection shall be construed as limiting any other available remedies. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 335; 2023, No. 6, § 246, eff. July 1, 2023.)

• § 9713. Immunity

  (a) No individual acting as an agent, guardian, or surrogate shall be subjected to criminal or civil liability for making a decision in good faith pursuant to the terms of an advance directive, or DNR order, or COLST order and the provisions of this chapter.

  (b)(1) No health care provider, health care facility, residential care facility, or any other person acting for or under such person’s control shall, if the provider or facility has complied with the provisions of this chapter, be subject to civil or criminal liability for:

  (A) providing or withholding treatment or services in good faith pursuant to the direction of a principal or patient, the provisions of an advance directive, a DNR order, a COLST order, a DNR identification, the consent of a principal or patient with capacity or of the principal’s or patient’s agent, guardian, or surrogate, or a decision or objection of a principal or patient; or

  (B) relying in good faith on a suspended or revoked advance directive, suspended or revoked DNR order, or suspended or revoked COLST order, unless the provider or facility knew or should have known of the suspension, or revocation.

  (2) A funeral director, crematory operator, cemetery official, procurement organization, or any other person acting for or under such person’s control, shall, if the director, operator, official, or organization has complied with the provisions of this chapter, not be subject to civil or criminal liability for providing or withholding its services in good faith pursuant to the provisions of an advance directive, whether or not the advance directive has been suspended or revoked.

  (3) Nothing in this subsection shall be construed to establish immunity for the failure to follow standards of professional conduct and to exercise due care in the provision of services.

  (c) No employee shall be subjected to an adverse employment decision or evaluation for:

  (1) Providing or withholding treatment or services in good faith pursuant to the direction of a principal or patient, the provisions of an advance directive, a DNR order, a COLST order, a DNR identification, the consent of the principal or patient with capacity or principal’s or patient’s agent, guardian, or surrogate, a decision or objection of a principal or patient, or the provisions of this chapter. This subdivision shall not be construed to establish a defense for the failure to follow standards of professional conduct and to exercise due care in the provision of services.

  (2) Relying on an amended, suspended, or revoked advance directive, unless the employee knew or should have known of the amendment, suspension, or revocation.

  (3) Providing notice to the employer of a moral or other conflict pursuant to subdivision 9707(b)(3) of this title, so long as the employee has provided ongoing health care until a new employee or provider has been found to provide the services. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 336; 2011, No. 60, § 13, eff. June 1, 2011; 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 9714. Failure to follow advance directive; unauthorized access of registry; administrative penalties

  (a) A health care provider, health care facility, residential care facility, funeral director, crematory operator, or cemetery official, or an employee of any of them having actual knowledge of an advance directive or an instruction of the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with the advance directive or instruction or with subsection 9707(b) of this title.

  (b) A health care provider, health care facility, residential care facility, funeral home director, crematory operator, cemetery official, probate division official, or procurement organization, or an employee of any of them, who accesses the registry without authority or when authority has been denied specifically by the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing, accreditation, or approving entity.

  (c) Nothing in this section shall be construed as limiting any other available remedies.

  (d) Liability for the cost of health care, disposition of remains, anatomical gifts, or funeral goods and services provided pursuant to an advance directive or pursuant to an instruction of the agent, guardian, or individual designated in an advance directive to make decisions regarding disposition of remains shall be the same as if the services were provided pursuant to the principal’s decision. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 337.)

• § 9715. Interpretation with other laws

  (a) The withholding or withdrawal of life sustaining treatment from a principal who has executed an advance directive limiting the provision of life sustaining treatment shall not be construed as a suicide.

  (b) Nothing in this chapter shall be construed to limit or abrogate an individual’s ability to create a document of anatomical gift pursuant to chapter 110 of this title.

  (c) Nothing in this chapter shall be interpreted to affect the statutory or common law in existence at the time of enactment applicable to death intentionally hastened through the use of prescription medication. Professionally appropriate use of medication to relieve suffering which may have the unintended effect of hastening death is not death intentionally hastened through the use of prescription medication.

  (d) Nothing in this chapter shall be construed to limit the effect of a DD Form 93 (Record of Emergency Data) properly executed by a current or former member of the armed forces of the United States described in 10 U.S.C. § 1481(a). (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2009, No. 119 (Adj. Sess.), § 6; 2011, No. 80 (Adj. Sess.), § 1, eff. April 13, 2012.)

• § 9716. Reciprocity; choice of law

  Nothing in this chapter limits the enforceability of an advance directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction. To the extent possible under conflicts of law doctrine, an advance directive executed in Vermont shall be interpreted according to Vermont law. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005.)

• § 9717. Presumption of validity

  An advance directive executed as provided in this chapter shall be presumed valid. No third party shall require an additional or different form of advance directive. A photocopy or facsimile of a duly executed original advance directive shall be relied upon to the same extent as the original. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005.)

• § 9718. Petition for review by the Probate Division of the Superior Court

  (a) A petition may be filed in the Probate Division of the Superior Court under this section by:

  (1) a principal, guardian, agent, ombudsman, a mental health patient representative, or interested individual other than one identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as not authorized to bring an action under this section;

  (2) a social worker or health care provider employed by or directly associated with the health care provider, health care facility, or residential care facility providing care to the principal;

  (3) the Defender General if the principal is in the custody of the Department of Corrections;

  (4) a representative of the State-designated protection and advocacy system if the principal is in the custody of the Department of Mental Health;

  (5) an individual or entity identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as authorized to bring an action under this section; or

  (6) Adult Protective Services, for the purposes of reviewing the authority of the agent under 33 V.S.A. § 6907(b)(3) to refuse protective services under 33 V.S.A. § 6907(b)(2)(C).

  (b) A petition filed in the Probate Division of the Superior Court under this section shall include a supporting affidavit and may request:

  (1) that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed, except that, if the principal is deceased, this subdivision shall not apply to any part of an advanced directive making an anatomical gift;

  (2) that the suspension or revocation of the advance directive be voided and the advance directive be reinstated on the grounds that at the time of the suspension or revocation, the principal was under duress or was the subject of fraud or undue influence;

  (3) a declaratory judgment concerning the construction of an advance directive or the rights, legal status, or other legal relationship of the parties with respect to an advance directive; or

  (4) an order for disposition of the remains of the principal.

  (c) A principal, agent, or interested individual may file an petition in the Probate Division of the Superior Court with a supporting affidavit challenging a determination that the condition specified pursuant to subdivision 9702(a)(3) of this title is met.

  (d) The principal or an agent may file an petition in the Probate Division of the Superior Court challenging a determination under subdivision 9706(a)(1) or subsection (c) of this title if:

  (1) the petitioner provides notice to any agent, the principal, an interested individual, or a person entitled to notification of a determination of capacity under subdivision 9706(a)(1) or subsection (c) of this title prior to filing;

  (2) the petition includes a supporting affidavit setting forth specific facts challenging a capacity determination under subdivision 9706(a)(1) or subsection (c) of this title;

  (3)(A) prior to filing, the petitioner obtains a determination from a clinician that the principal’s capacity is not as the principal’s clinician has determined; or

  (B) if the petitioner is unable to obtain the determination required by subdivision (A) of this subdivision (3), the petitioner includes in the supporting affidavit the facts regarding the attempts to obtain a second determination of capacity and supporting the challenge to the capacity determination by the petitioner’s clinician; and

  (4) the petitioner notifies the principal’s clinician that an petition challenging the determination of capacity has been filed and provides the supporting determination or affidavit to the principal’s clinician.

  (e) The Probate Division of the Superior Court may limit the frequency of a capacity redetermination pursuant to subsection (d) of this section upon a finding that there have been multiple requests for redetermination, and that those requests have been frivolous or requested in bad faith.

  (f) The agent, if any, shall have the opportunity to appear in any action brought under subdivision (b)(1), (2), or (3) of this section or subsection (c) or (d) of this section.

  (g) A petitioner filing under subsection (b), (c), or (d) of this section shall, if doing so would be consistent with any obligations the petitioner has under HIPAA, provide notice to the following persons if known: the principal, an agent, a guardian, and interested individuals. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 338; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 21; 2015, No. 23, § 52; 2017, No. 121 (Adj. Sess.), § 4a, eff. May 3, 2018; 2023, No. 81, § 3, eff. July 1, 2023.)

• § 9719. Obligations of State agencies

  (a) Not later than March 1, 2012, and from time to time thereafter, the Commissioner, in consultation with all appropriate agencies and organizations, shall adopt rules pursuant to 3 V.S.A. chapter 25 to effectuate the intent of this chapter. The rules shall cover at least one optional form of an advance directive with an accompanying form providing an explanation of choices and responsibilities, the Vermont DNR/COLST form as outlined in subsection 9708(b) of this title, the use of experimental treatments, a DNR identification, revocation of a DNR identification, and consistent statewide emergency medical standards for DNR/COLST orders and advance directives for patients and principals in all settings. The Commissioner shall also provide, but without the obligation to adopt a rule, optional forms for advance directives for individuals with disabilities, limited English proficiency, and cognitive translation needs.

  (b)(1) Within one year of the effective date of this chapter, the Commissioner shall develop and maintain a registry to which a principal may submit his or her advance directive, including a terminal care document and a durable power of attorney. The rules shall describe when health care providers, health care facilities, and residential care facilities may access an advance directive in the registry. In no event shall the information in the registry be accessed or used for any purpose unrelated to decision making for health care or disposition of remains, except that the information may be used for statistical or analytical purposes as long as the individual’s identifying information remains confidential.

  (2)(A) Within one year of the effective date of this chapter, the Commissioner shall adopt rules pursuant to 3 V.S.A. chapter 25 on the process for securely submitting, revoking, amending, replacing, and accessing the information contained in the registry. The rules shall provide for incorporation into the registry of notifications of amendment, suspension, or revocation under subsection 9704(c) of this title and revocations of appointment under subsection 9704(d) of this title.

  (B) The Commissioner shall provide to any individual who submits an advance directive to the registry a sticker that can be placed on a driver’s license or identification card indicating that the holder has an advance directive in the registry.

  (c)(1) Within one year of the effective date of this chapter, the Commissioner shall provide on the Department’s public website information on advance directives and the registry to appropriate State offices. The Commissioner shall also include information on advance directives, and on the registry and the optional forms of an advance directive.

  (2) Within one year of the effective date of this chapter, the Commissioner of Motor Vehicles shall provide motor vehicle licenses and identity cards, as soon as existing licenses or cards have been depleted, which allow the license holder or card holder to indicate that he or she has an advance directive and whether it is in the registry. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 339; 2011, No. 60, § 14, eff. June 1, 2011; 2023, No. 6, § 247, eff. July 1, 2023.)

• § 9720. Severability

  If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, provisions of this chapter are severable. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005.)

• § 9721. Remote witnesses and explainers through March 31, 2024

  (a) [Repealed.]

  (b)(1) Notwithstanding any provision of subsection 9703(b) of this title to the contrary, an advance directive executed by a principal between February 15, 2020 and June 15, 2020 shall be deemed to be valid even if the principal signed the advance directive outside the physical presence of one or both of the required witnesses, provided all of the following conditions were met with respect to each remote witness:

  (A) the principal and the remote witness were known to each other;

  (B) the remote witness was informed about the role of a witness to the execution of an advance directive; and

  (C) the principal included on the advance directive the name and contact information for the witness.

  (2) An advance directive executed as set forth in subdivision (1) of this subsection shall be valid until June 30, 2021 unless amended, revoked, or suspended by the principal in accordance with this chapter prior to that date.

  (c)(1) Notwithstanding any provision of subsection 9703(b) of this title to the contrary, an advance directive executed by a principal between June 15, 2020 and March 31, 2024 shall be deemed to be valid even if the principal signed the advance directive outside the physical presence of one or both of the required witnesses, provided all of the following conditions are met with respect to each remote witness:

  (A) the principal and the remote witness were known to each other;

  (B) based on video or telephonic communication between the principal and the remote witness, the remote witness attested that the principal seemed to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed; and

  (C) the principal included on the advance directive the name and contact information for the remote witness and the nature of the principal’s relationship to the remote witness.

  (2) An advance directive executed as set forth in subdivision (1) of this subsection shall remain valid unless amended, revoked, or suspended by the principal in accordance with this chapter.

  (d)(1) Notwithstanding any provision of subsection 9703(d) or (e) of this title to the contrary, an advance directive executed by a principal between February 15, 2020 and March 31, 2024 while the principal was being admitted to or was a resident of a nursing home or residential care facility or was being admitted to or was a patient in a hospital shall be deemed to be valid even if the individual who explained the nature and effect of the advance directive to the principal in accordance with subsection 9703(d) or (e) of this title, as applicable, was not physically present in the same location as the principal at the time of the explanation, provided the individual delivering the explanation was communicating with the principal by video or telephone.

  (2) An advance directive executed in accordance with this subsection shall remain valid as set forth in subsection (b) or (c) of this section, as applicable.

  (e) On and after April 1, 2024, advance directives shall only be executed in accordance with section 9703 of this chapter. (Added 2019, No. 107 (Adj. Sess.), § 1, eff. June 15, 2020; amended 2021, No. 6, § 10, eff. March 29, 2021; 2021, No. 85 (Adj. Sess.), § 7, eff. March 22, 2022; 2023, No. 4, § 5, eff. March 29, 2023; 2023, No. 88 (Adj. Sess.), § 4, eff. April 1, 2024.)

• Subchapter 002: SURROGATE CONSENT

• § 9731. Informed consent by surrogate for DNR/COLST order

  (a)(1) One or more interested individuals may be eligible to act as the surrogate for an adult without capacity in order to provide or withhold informed consent for a do-not-resuscitate order or clinician order for life-sustaining treatment pursuant to this subchapter. Only one interested individual may act as a surrogate at a time.

  (2)(A) A patient’s health care provider shall not be considered an interested individual and shall not serve as a patient’s surrogate to provide or withhold informed consent for a DNR/COLST order pursuant to this chapter unless related to the patient by blood, marriage, civil union, or adoption.

  (B) The owner, operator, employee, agent, or contractor of a residential care facility, health care facility, or correctional facility in which the patient resides at the time the DNR/COLST order is written shall not be considered an interested individual and shall not act as the patient’s surrogate to provide or withhold consent for a DNR/COLST order pursuant to this chapter unless related to the patient by blood, marriage, civil union, or adoption.

  (b) A surrogate may provide or withhold informed consent only if all of the following conditions are met:

  (1) the patient’s clinician determines that the patient lacks capacity to provide informed consent;

  (2) the patient has not appointed an agent through an advance directive;

  (3) the patient has not indicated in an advance directive that the interested individual or individuals seeking to serve as surrogate should not be consulted on health care decisions or otherwise provided instructions in an advance directive contrary to allowing such individual or individuals to serve as surrogate;

  (4) the patient does not have a guardian who is authorized to make health care decisions; and

  (5) the patient does not object to the surrogate providing or withholding consent for a DNR/COLST order or to the treatment proposed to be provided or withdrawn pursuant to a DNR/COLST order, even if the patient lacks capacity.

  (c)(1) A surrogate shall be an interested individual who is designated by the patient by personally informing the patient’s clinician. If the patient designates a surrogate to the clinician orally, the clinician shall document the designation in the patient’s medical record at the time the designation is made.

  (2) If the patient has not designated a surrogate pursuant to subdivision (1) of this subsection, or if the surrogate designated by the patient is not reasonably available or is unwilling to serve, then the patient’s clinician shall make a reasonable attempt to notify all reasonably available interested individuals of the need for a surrogate to make a decision regarding whether to provide or withhold consent for a DNR/COLST order. A surrogate shall be an interested individual who is:

  (A) willing to provide or withhold informed consent for a DNR/COLST order for the patient in accordance with the patient’s wishes and values, if known; and

  (B) willing and available to consult with the patient’s clinician.

  (3) Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, an individual shall not serve as a surrogate over the patient’s objection, even if the patient lacks capacity.

  (d) The patient’s clinician, health care provider, or residential care provider may rely on the decision of a surrogate identified pursuant to this section as long as the clinician or provider documents in the patient’s medical record that the surrogate has confirmed that one of the following circumstances applies:

  (1)(A) All interested individuals agree on the decision to provide or withhold consent for a DNR/COLST order, in which case they shall designate one surrogate, as well as an alternate, if available, who is authorized to provide or withhold consent and whose name will be identified on the DNR/COLST form and in the patient’s medical record.

  (B) All interested individuals agree that a specific interested individual may make the decision regarding whether to provide or withhold consent for a DNR/COLST order, in which case they shall designate the individual as the surrogate, as well as an alternate, if available, who is authorized to provide or withhold consent and whose name will be identified on the DNR/COLST form and in the patient’s medical record.

  (C) The surrogate or alternate, if applicable, is not reasonably available, in which case the clinician shall consult the interested individuals to request designation of another surrogate and alternate.

  (2) If at any time the interested individuals are unable to agree on the designation of a surrogate, an interested person, as defined in 14 V.S.A. § 3061, may file a petition for guardianship in the Probate Division of the Superior Court.

  (e) A surrogate providing informed consent for a DNR/COLST order shall use substituted judgment consistent with the patient’s wishes and values and consistent with the parameters described in subsection 9711(d) of this title. The surrogate shall consult with the patient to the extent possible, and with the patient’s clinician and any other appropriate health care providers and shall provide or withhold informed consent for a DNR/COLST order by attempting to determine what the patient would have wanted under the circumstances.

  (f) The patient’s clinician shall make reasonable efforts to inform the patient of any proposed treatment, or of any proposal to withhold or withdraw treatment, based on the decisions made by the surrogate.

  (g) If the patient’s clinician determines that the patient no longer lacks capacity and the DNR/COLST order was based on informed consent provided by a surrogate, the clinician shall seek the informed consent of the patient for any DNR/COLST order, which shall supersede the surrogate’s consent.

  (h) A surrogate shall have the same rights as a patient with capacity would have to the following, to the extent that it is related to providing or withholding informed consent for a DNR/COLST order:

  (1) request, receive, review, and copy any oral or written information regarding the patient’s physical or mental health, including medical and hospital records;

  (2) participate in any meetings, discussions, or conferences concerning health care decisions related to the patient;

  (3) consent to the disclosure of health care information; and

  (4) file a complaint on behalf of the patient regarding a health care provider, health care facility, or residential care facility. (Added 2015, No. 136 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)